Gomez, Andres Felipe v. The State of Texas--Appeal from 179th District Court of Harris County

Affirmed and Opinion filed November 29, 2005

Affirmedand Opinion filed November 29, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00474-CR

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ANDRES FELIPE GOMEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 963,222

O P I N I O N

A jury convicted appellant, Andres Felipe Gomez, of intoxication manslaughter and the court found an enhancement allegation to be true. Appellant was sentenced to thirteen years in prison and fined $10,000. On appeal, he raises two points of error: (1) that the use of certain evidence related to a domestic assault violates the Equal Protection Clause of the United States Constitution; and (2) the evidence was factually insufficient to support his conviction. We affirm.

Factual Background

On July 21, 2002 at approximately 3:54 a.m., appellant, his wife Cynthia, and brother Humberto were traveling in Cynthia=s green Mustang. Appellant was driving and attempted to make a left turn from the neutral lane across three lanes of traffic into a Whataburger. While appellant was turning, a red BMW traveling between fifty and sixty[1] miles per hour broadsided the Mustang. Cynthia Gomez, complainant, died at the scene of the accident.

Appellant, complainant and Humberto had spent several hours at a Colombian celebration where all had been drinking. Appellant=s testimony indicated he had four to five beers at the party, and another alcoholic drink called aqua diente while driving. A toxicologist, relying on a blood test conducted more than an hour after the accident, indicated appellant=s blood alcohol content at the time of the accident was between .093 and .109Cwell over the legal limit of .08. Despite his intoxication, appellant drove from the party.

The three in the Mustang originally stopped at another fast food restaurant, which was closed. They then drove to the Whataburger, where the accident took place. There was conflicting testimony regarding what speed the BMW was traveling and whether or not the BMW may have run a red light. Additionally, appellant=s testimony conflicted with that of other witnesses stating appellant did not utilize a window of approximately fifteen seconds to make a safe left-hand turn when all lanes were clear. Appellant claimed he was waiting on a vehicle entering the roadway, whereas others testified appellant sat in the neutral lane for more than fifteen seconds when it was perfectly safe to make the turn. All agree that appellant did not make a safe turn and that, as a result, his wife died.

Following the accident, appellant exited the vehicle and expressed his unhappiness over the damage to the Mustang. Only later did he appear to show any concern for his wife=s condition. His wife died at the scene. Appellant, his brother and the driver of the BMW were taken for medical care, although none of them appear to have suffered serious injuries. The driver of the BMW had traces of marijuana, cocaine, and alcohol in his system. However, he was not legally drunk and there was no indication he had used marijuana or cocaine the day of the accident.

A grand jury indicted appellant for intoxication manslaughter on September 29, 2003, enhanced with one felony conviction. The jury found appellant guilty of intoxication manslaughter and the court found the enhancement paragraph true. Appellant timely filed notice of appeal to this Court.

Analysis

I. Equal Protection

In his first point of error, appellant argues that admitting evidence of a misdemeanor conviction for assault against a woman violates his rights under the Fourteenth Amendment to the United States Constitution. The court admitted the evidence to attack appellant=s credibility because it is a crime of moral turpitude under our law. See Mendez v. State, No. 14-04-00024-CR, 2005 WL 1089408, at *4 (Tex. App.CHouston [14th Dist.] May 10, 2005, no pet.) (not designated for publication) (citing Lloyd v. State, 151 Tex. Crim. 43, 204 S.W.2d 633, 634 (1947); Stewart v. State, 100 Tex. Crim. 566, 272 S.W.2d 202, 203 (1925)). However, misdemeanor convictions for assaults against a manCwhether committed by a woman or another manCare not considered crimes of moral turpitude. Thus, the argument goes, it violates principles of Equal Protection to treat differently crimes against women and against men.

Appellant raises this Equal Protection challenge for the first time on appeal. Even constitutional arguments may be waived, unless they fit into one of two narrowly defined categories: (1) rights that are waivable only; or (2) denials of absolute systemic requirements. Id. at 889. Neither applies in this case. Introduction of evidence that may violate principles of Equal Protection is not a right that is waivable only. Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002) (en banc) (citations omitted). Neither does admitting that evidence represent the denial of an absolute systemic requirement. Id. Because appellant=s challenge does not fit into either of the two narrow categories, it was waived when not raised at trial. As such, we do not address it and we overrule appellant=s first point of error.

II. Factual Sufficiency

Appellant=s second point of error raises a factual sufficiency challenge. We employ familiar standards of review to analyze appellant=s challenge: reviewing all of the evidence to determine whether the jury was Arationally justified in finding guilt beyond a reasonable doubt.@ Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We view the evidence in a neutral light, without the prism of the light most favorable to the verdict. Id. at 481. The evidence may be factually insufficient in two ways: (1) though legally sufficient, it may be too weak to support a finding of guilt beyond a reasonable doubt; and (2) when balanced against the evidence supporting the verdict, the contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484B85. As an appellate court, we defer to the jury=s role as factfinder, particularly in areas of witness credibility, demeanor, and the weight to be given conflicting testimony. Id. at 481.

Section 49.08 of the Texas Penal Code provides that a person is guilty of intoxication manslaughter when he (1) operates a motor vehicle . . . (2) is intoxicated and (3) by reason of that intoxication causes the death of another by accident or mistake.[2] Tex. Pen. Code ' 49.05. The State had to prove each of these elements beyond a reasonable doubt. We have reviewed the entire record and hold that the evidence is factually sufficient to support the jury=s verdict.

Appellant=s challenge raises several arguments attempting to show that appellant not cause the death. Specifically, appellant argues that while he certainly operated a motor vehicle while intoxicated, the driver of the BMW, Jose Cantu, caused complainant=s death. In reality, appellant asks us to replace the jury and re-weigh the evidence anew in order to reach a different result. That we cannot do. The jury heard ample expert testimony indicating that, regardless of Mr. Cantu=s possibly-impaired condition and excessive speed, appellant=s left turn made the accident and death inevitable. Thus, even had Mr. Cantu been a perfect driver, which he certainly was not, Cynthia Gomez would still be dead because of appellant=s poor decision.

Experts testified that no driver approaching appellant=s car would have had time to react adequately, even if traveling the speed limit. A driver at night requires three seconds to realize danger and react to it. In this case, given the distances involved, even had Mr. Cantu been driving the speed limit, he would have had time to recognize danger within only two feet of colliding with appellant. Experts further testified that Mr. Cantu=s car would not have had time in those two feet of distance to slow enough to prevent death. Simply put, even in ideal circumstances, appellant would have caused his wife=s death by not yielding the right of way. The turn was not safe.

The other, but related, line of argument centers on whether appellant made a mistake anyone would have made. This line of argument centers not on Mr. Cantu=s poor driving, but on whether being intoxicated impaired appellant=s judgment. Appellant argues that any driver might have made the same decision to turn whether sober or not. The jury heard expert testimony on the effects of alcohol not only on physical ability, but also on mental ability to judge distance, speed, and exercise proper judgment. The testimony indicated that an intoxicated person would likely make incorrect determinations regarding distance and speed of an oncoming vehicle. Testimony further indicated that an intoxicated driver was more likely to exercise poor judgment. Appellant did not refute the experts= opinions. The jury was free to rely on the expert testimony and conclude, especially without any contrary testimony, that appellant=s intoxication did cause him to make a turn he would not have attempted otherwiseCa turn that caused his wife=s death.

On appeal, appellant simply offers example of evidence he believes would have made the State=s case stronger. He does not, however, explain what contrary evidence there is to make the verdict manifestly unjust and wrong. After reviewing the entire record, we hold the verdict is wholly supported by the record and factually sufficient. We overrule appellant=s second point of error.

Conclusion

Each of appellant=s points of error is overruled and we affirm the judgment of the trial court.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Opinion filed November 29, 2005.

Panel consists of Justices Fowler, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The jury heard testimony from several witnesses placing the BMW=s speed between fifty and ninety miles per hour. However, expert testimony placed the speed between fifty and sixty miles per hour. The posted speed limit on that roadway, F.M. 1960, is forty-five miles per hour. All testimony indicated the BMW was exceeding the speed limit. In any event, the actual speed is unimportant given the expert testimony that the accident was inevitable at any of the speeds, and death was likely at any of the speeds as well.

[2] The statute does not list these as three separate elements, but because appellant challenges only causation, we identify separately each element the state must prove.